Avoiding Controversy and Seeking Equity: Amending the Yellowstone River Compact in Furtherance of Its Dual Purposes

The Yellowstone River Compact governing the interstate waters of the Yellowstone River and its tributaries was ratified in 1951 by Montana, Wyoming, and North Dakota. The Compact’s dual purposes are to achieve “equitable apportionment” of these waters and to “avoid present and future controversy.” However, the Compact's Article V apportionment scheme inequitably distributes risk between water users and excludes settled tribal water rights, undermining these dual purposes, a problem compounded by recent drought. Unfortunately, climate change projections throughout the Yellowstone River Basin suggest that future relief from water shortage is unlikely. To address these challenges while upholding the Compact’s purposes, the Compact should be amended. This thesis first provides necessary context, explaining western water appropriation, existing tribal water rights in the Yellowstone River Basin, interstate water compacts generally, and covering the hydrologic scope and key provisions of the Yellowstone River Compact. Equitable challenges associated with administration of the Compact in light of projected hydrologic changes are then examined. In addition, a synopsis of Montana v. Wyoming is provided to demonstrate the dire consequences of inequitable water administration. Next, to better support equity in the Compact, amendments to the Compact’s key provisions are proposed, including changes to the Article V apportionment scheme, specifying settled tribal water rights within this apportionment scheme, and providing tribal representation on the Yellowstone River Compact Commission. Finally, a proposal detailing how amendment may occur addresses how stakeholders may recognize the urgency of a problem and work toward equitably reallocating the burden between resource users.